Appeal No. 1997-0569
Application No. 08/150,559
product-by-process claim, a rejection based
alternatively on either section 102 or section 103
of the statute is eminently fair and acceptable
[because] [a]s a practical matter, the Patent Office
is not equipped to manufacture products by the
myriad of processes put before it and then obtain
prior art products and make physical comparisons
therewith.
The burden in this type of situation is on the appellants
to present evidence from which the examiner could reasonably
conclude that the claimed product differs in kind from the
product of the prior art, thus demonstrating the unobvious
character of the claimed subject matter (i.e., product) over
the cited reference or references. No such evidence was
offered in this case. Appellants have provided no evidence to
show that the granules of claim 7 on appeal or the roofing
material of claim 13 are in any way different in kind from the
naturally occurring red colored (e.g., iron oxide) rock
roofing granules disclosed or suggested in Wright and Lewis or
a roofing material as in Wright which would use only those
naturally occurring red rock granules as a coating on a man-
made composition substrate. We see no reason why appellants’
artificially produced iron oxide roofing granules or a roofing
material using such granules would in any meaningful way be
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